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Kiriakou writes: "President Donald Trump called (again) last week for the Justice Department to initiate a criminal investigation of former Hillary Clinton aide Huma Abedin after the State Department posted thousands of emails and other documents that were found on the laptop of Abedin's estranged husband, former congressman and current federal sex offender Anthony Weiner."

John Kiriakou. (photo: The Washington Post)
John Kiriakou. (photo: The Washington Post)

Would Eric Holder Have Prosecuted Huma Abedin?

By John Kiriakou, Reader Supported News

06 January 18


resident Donald Trump called (again) last week for the Justice Department to initiate a criminal investigation of former Hillary Clinton aide Huma Abedin after the State Department posted thousands of emails and other documents that were found on the laptop of Abedin’s estranged husband, former congressman and current federal sex offender Anthony Weiner. Most mainstream media outlets ran the story for a day, dismissed Trump as being deranged, and moved on to other news. I think there is something more to this.

I want to go on record as saying that I don’t think Huma Abedin should be arrested. She’s already been investigated, and the Justice Department found that she had not committed a crime. Sure, there were classified documents on her husband’s computer, but she did not appear to have had any criminal intent when she put them there. She was sloppy, careless, perhaps lazy. She wanted all of her classified passwords in one place. And that place wasn’t on her classified system; it was at home, on her unclassified system. It’s certainly a fireable offense, but it doesn’t rise to the level of criminal behavior.

Except in the Eastern District of Virginia in the courtroom of Judge Leonie Brinkema.

Judge Brinkema made a ruling in my case that set legal precedent and that was such a dangerous development that virtually anybody with a security clearance could be charged with espionage if the government decided that they didn’t like their politics. (I was charged with three counts of espionage after blowing the whistle on the CIA’s torture program. All of those charges were dropped, and I eventually pleaded guilty to a lesser charge to make the case go away; I was facing 45 years in prison. I served 23 months.)

In United States v. Kiriakou, Brinkema held that in cases involving the Espionage Act, the government need not prove any criminal intent whatsoever. She said that a person could commit espionage “accidentally,” and that intent, or lack thereof, was not a defense. This was in direct contrast to another judge’s ruling in NSA whistleblower Tom Drake’s case, where even if Drake had exposed classified information (which he hadn’t), he lacked any criminal intent. The case against him fell apart and all felony charges were dropped. But Brinkema’s ruling left me with no defense.

Furthermore, Brinkema defined “espionage” as “the provision of any national defense information to any person not entitled to receive it.” “National defense information” is not defined in the federal code. It never has been. The Espionage Act doesn’t refer to “classified” information because the law was written in 1917 to combat German saboteurs during World War I, while the classification system wasn’t invented until 1952. So what is “national defense information?” It’s whatever the prosecutor decides it is.

Let’s look, then, at what Huma Abedin did. As the Washington Post reported on January 2,

“The president’s tweet (calling for Abedin’s arrest) comes just days after the State Department posted online thousands of Abedin’s emails, which were captured on the computer of Anthony Weiner, her estranged husband. Those emails – some of which contained classified information – spurred the FBI in October [2016] to reopen its investigation into Clinton’s use of a private email server while she was secretary of state, although the bureau would ultimately conclude that the messages gave them no reason to change their conclusion not to recommend charges against Clinton or any of her aides.”

Then-FBI director James Comey called Clinton and Abedin “extremely careless” in their handling of classified information. At the very minimum, there’s a possible case against both for misdemeanor “failure to secure classified information.”

That’s all fine and good. But according to Brinkema’s interpretation of the law, Abedin (and Clinton, for that matter) violated the Espionage Act. At its most lenient, this violation calls for up to five years in a federal prison. At worst, it’s life without parole.

That’s preposterous, of course. But so was the Obama administration’s use of the Espionage Act as an iron fist to stamp out dissent within the US intelligence community. Obama’s attorney general, Eric Holder, prosecuted eight people under the Espionage Act for allegedly giving classified information to the press. That’s nearly three times the number of prosecutions under all previous presidents combined. Trump has, at least so far, continued that policy with the arrest, incarceration, and prosecution of Reality Winner. And with Jefferson Beauregard Sessions III at the Justice Department, we should only expect the worst.

In the meantime, two things need to happen. First, Congress must rewrite the Espionage Act. They have to define what “national defense information” is. They have to allow for an affirmative defense. And they have to ensure that no president is able to use the Espionage Act as a political weapon. But there are no votes or special interest money in Espionage Act reform. Nobody on Capitol Hill has the guts to do it.

Second, Leonie Brinkema must go. Appointed to the federal bench by Reagan and elevated by Clinton, she obviously hasn’t read a law book in a long time. There’s no place for her reactionary judicial activism in today’s America.

John Kiriakou is a former CIA counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act – a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration's torture program.

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+5 # elizabethblock 2018-01-06 11:03
Good luck with any of this!
+23 # jeffsyrop 2018-01-06 12:17
This article is an excellent reminder of how scary Obama actually was. People such as Snowden and Kiriakou are our only American heroes nowadays, and yet the Obama administration tried to ruin their lives.

Our freedom of speech is so incredibly precious. But I can't see Congress rewriting the Espionage Act unless we had a truly progressive President.
+4 # Michaeljohn 2018-01-06 14:23
Or unless one of the top Rethuglicans winds up being prosecuted under the statute.
+3 # 2018-01-06 19:25
"Intent" is not required in the applicable laws. If Abedin should not be prosecuted (I think she should and be given a light sentence and eternally prohibited from receiving a security clearance), equal application of the security laws would force the release of many prisoners who inadvertently violated the laws -- in particular that poor sailor, Kristian Saucier, who took a pic with his subs radar screens in the background in order to send it to his girlfriend.

Either both should be in jail or neither should be in jail. We cannot demand unequal protection under the law.

Lee Nason
New Bedford, Massachusetts
+4 # Jaax88 2018-01-06 20:43
The important point Kiriakou is making is the Espionage Act is dangerous to the American public with its wide open language allowing charges that may not have been intended or constitutional.
+6 # lfeuille 2018-01-06 20:45
Kiriakou is right. This is ridiculous. The state depts. decision to post these documents online indicates to me that they did not contain any really dangerous info in spite of some of them being classified. Over classification is a real problem in the Fed. gov't. It does indicate that they both were extemely careless, but that is down mostly to Hillary who should have made sure she was being more careful with gov't records. Huma was really just a flunky. I agree that this type of sloppiness should lead to loss of security clearance and firing, not to prosecution. Obama's legacy set a precedent for the vindictive moran to exploit.
0 # Rodion Raskolnikov 2018-01-08 08:36
The Dept. of Justice and the FBI are fully politicized. They go after the political enemies of the establishment. So Kirakou gets prosecuted and a judge will interpret the laws in whatever way in needed to put him in jail. But for people favored by the establishment, like Clinton and Abedin, the Justice department will change the wording of its report from "gross negligence) which is a crime to "extremely careless" which is not a crime.

The Justice system in the US is broken. Kiriakou, Snowden, Manning, and the rest of the whistle blowers are heroes. There "intentinos" were good. They wanted to expose the crimes and corruptions of government. These are heroic intentions.

The intentions of Clinton and Abedin are hard to understand. They do seem careless and thoughtless. They were interested in collecting bribes from billionaires all over the world. The really did not care about government secrets. But I don't care about government secrets, either. I don't think the government should have secrets. It is a slippery slope to fascism.

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